in transitu where the property has passed to the buyer (90).

Seller's lien-B.C., N.W.T. and Manitoba.-Under the several Acts mentioned, the unpaid seller of goods who is in possession of them has, subject to the provisions of the statute itself, a right to retain possession of the goods until payment or tender of the price in the following cases (91), namely:-

(a) Where the goods have been sold without any stipulation as to credit;

(b) Where the goods have been sold on credit, but the terms of credit has expired ;

(c) Where the buyer becomes insolvent; and a person is deemed to be insolvent, within the meaning of the Act, who either has ceased to pay his debts in the ordinary course of business, or cannot pay his debts as they become due (92).

The seller may exercise his right of lien, notwithstanding that he is in possession of the goods as agent or bailee for the buyer (93). This is in extension of the previous law which allowed the lien in such a case only where the buyer became insolvent (94).

Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien or retention on the remainder, unless such part delivery has been

(90) Stat. Man. 1896, c. 25, s. 37 (2); R.S.B.C. 1897, c. 169, s. 50 (2); Con. Ord. N. W. T. c. 39, s. 38 (2).

(91) Stat. Man. 1896, c. 25, s. 38; R.S. B.C. 1897, c. 51; Con. Ord N.W.T. c. 39, s 39.

(92) Stat. Man. 1896, c. 25, s. 58 (3); Con. Ord. N.W. T. c. 39, s. 2 (3).

(93) Stat. Man. 1896, c. 25, s. 38 (2); R.S. B.C. 1897, c. 169, s. 51; Con. Ord. N.W.T. c. 39, s. 39 (2).

(94) Cusack v. Robinson (1861) 30 L.J. Q.B. 264; Grice v. Richardson, (1877) 3 App. Cas. 319.

made under such circumstances as to show an agreement to waive the lien or right of retention (95).

It is also declared that the unpaid seller of goods loses his lien or right of retention thereon (96), (a) When he delivers the goods to a carrier or other bailee (being the buyer's agent) for the purpose of transmission to the buyer without reserving the right of disposal of the goods. If the carrier who receives possession of the goods be the seller's agent, his possession is the possession of the seller and the lien would remain;

(6) When the buyer or his agent lawfully obtains possession of the goods;

(c) By waiver thereof. Examples of waiver are, selling on credit, i.e. where the buyer is to take possession of the goods and the seller is to trust to the buyer's promise for the payment of the price at a future time (97); or by taking a bill, note, or other negotiable security in conditional payment of the price, thereby making the seller a paid seller for the time being (98); or by assenting to the buyer's re selling or pledging the goods (99).

But the lien or right of retention is not lost by reason only that the unpaid seller has obtained judgment or decree for the price of the goods (100); nor

(95) Stat. Man. 1896, c 25, s. 39; R.S.B.C. 1897, c. 169, s. 52; Con. Ord. N.W.T. c. 39, s. 40.

(96) Stat. Man. 1896, c. 25, s. 40; R.S.B.C. 1897, c. 169, s. 53; Con. Ord. N.W.T. c. 39, s. 41.

(97) Spartali v. Benecke (1850) 10 C.B. 212; Benjamin on Sale 1888 ed. 809.

(98) Miles v. Gorton (1834) 2 C. & M. 512.

(99) Stoveld v. Hughes (1811) 14 East 308; Merchant Banking Co. v. Phoenix (1877) 5 Ch. D. 205.

(100) Stat. Man. 1896, c. 25, sec. 40 (2); R.S. B.C. 1897, c. 169,. s. 53 (2); Con. Ord. N. W.T. c. 39, s. 41 (2).

was it under the law previous to the Sale of Goods Statutes before mentioned (101).

Subject to the provisions of the Act, the unpaid seller's right of lien or retention is not affected by any sale, or other disposition of the goods which the buyer may have made, unless the seller has assented thereto (102); provided that where a document of title to goods has been lawfully transferred to any person as buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faith and for valuable consideration, then, if such last mentioned transfer was by way of sale, the unpaid seller's right of lien or retention is defeated, and if such last mentioned transfer was by way of pledge or other disposition for value, the unpaid seller's right of lien or retention can only be exercised subject to the rights of the transferee.

The seller's assent to a sale or other disposition may be either express (103), or implied, as by conduct recognizing the title of the subsequent buyer or pledgee (104). A "document of title to goods" means any bill of lading, dock warrant, warehouse-keeper's certificate, and warrant or order for the delivery of goods, and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorizing, or purporting to authorize, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented (105); and a thing is deemed to be

(101) Scrivener v. G. N. Ry. (1871) 19 W. R. 388.

(102) Stat. Man. 1896, c. 25, s. 44; R.S.B.C. 1897, c. 169, s. 57; Con. Ord. N.W.T. c. 39, s. 45.

(103) Stoveld v. Hughes (1811) 14 East 308.

(104) Pearson v. Dawson (1858) E. B. & E. 448.

(105) Stat. Man. 1896, c. 25, s. 58 (1); R.S.B.C. c. 169, s. 2, and c. 4, s. 2; Con. Ord. N.W. T. c. 39, s. 2, and c. 40, s. 2 (4).

done "in good faith" within the meaning of the Act when it is in fact done honestly, whether it be done negligently or not (106).

Re-sale by unpaid vendor-B.C., N.W.T., and Manitoba.- Where an unpaid seller who has exercised his right of lien or retention re-sells the goods, the buyer acquires a good title thereto as against the original buyer (107); and where the goods are of a perishable nature, or where the unpaid seller gives notice to the buyer of his intention to re-sell, and the buyer does not, within a reasonable time, pay or tender the price, the unpaid seller may re-sell the goods and recover from the original buyer damages for any loss occasioned by his breach of contract (108). What is a reasonable time is a question of fact (109) and not one of law.

So also, where the seller expressly reserves a right of re-sale in case the buyer should make default, and, on the buyer making default, re-sells the goods, the original contract is thereby rescinded, but without prejudice to any claim the seller may have for damages (110); but with those exceptions a contract of sale is not rescinded by the mere exercise by an unpaid vendor of his right of lien or retention (111).

(106) Stat. Man. 1896, c. 25, s. 58 (2); Con. Ord. N.W.T. c. 39, S. 2 (2).

(107) Stat. Man. 1896, c. 25, s. 45 (2); R.S. B.C. 1897, c. 169, s. 58 (2); Con. Ord. N. W. T. c. 39, s. 46 (2).

(108) Stat. Man. 1896, c. 25, s. 45 (3); R.S.B.C. c. 169, s. 58 (3) ; Con. Ord. N.W.T. c. 39, s. 46 (3).

(109) Stat Man. 1896, c. 25, s. 53; R.S.B.C. c. 169, s. 66; Con. Ord. N W. T. c. 39, s. 54.

(110) Stat. Man. 1896, c. 25, s. 45 (4); R.S.B.C. 1897, c. 169, s. 58 (4); Con. Ord. N.W. T. c. 46 (4).

(111) Stat. Man. 1896, c. 25, s. 45 (1); R.S.B.C. 1897, c. 169, s. 58 (1); Con. Ord. N. W. T. c. 39, s. 46(1).

The express reservation of the right to re-sell, ordinarily reserved in cases of sales by auction, is construed as a condition for making void the sale on the buyer's default, and if the goods are re-sold at a profit the seller is entitled to it; and if at a loss, the buyer is liable for the damages, including the expenses attending the re-sale (112); but if there be no express reservation of the right to re-sell, the goods are sold as being the property of the buyer, and the latter is entitled to the excess if they sell for a higher price than he agreed to give (113).

The

Revendication and preference - Quebec. unpaid vendor of a thing has two privileged rights: (1) A right to revendicate;

(2) A right of preference upon its price (114).

In the case of insolvent traders these rights must be exercised within 30 days after the delivery (115). The right to revendicate is subject to four conditions:

(1) The sale must not have been made on credit; (2) The thing must still be entire and in the same condition;

(3) The thing must not have passed into the hands of a third party who has paid for it;

(4) It must be exercised within eight days after the delivery, saving the provision concerning insolvent traders, already referred to, when 30 days is allowed (116).

In an action to revendicate goods as having been sold for cash to the defendant, an insolvent trader,

(112) Lamond v. Davall (1847) 9 QB. 1030, 16 L.J.Q.B. 136; Benjamin on Sale, 4th ed., p. 803.

(113) Greaves v. Ashlin (1813) 3 Camp. 426.

(114) Quebec Civil Code, Art. 1998.

(115) 54 Vict. 1890 (Que.) c. 39, s. 2.

(116) Civil Code Que. Art. 1999.